entered the field where plaintiff's seed was, and ate part of it and trampled the rest, so that it was worthless, and that the value of the seed was from $400 to $600.

At the conclusion of plaintiff's evidence, the court granted a nonsuit on the alleged ground of insufficiency of evidence to show that the defendants' cattle committed the trespass or destroyed the seed, and especially upon the ground of insufficiency of evidence to show negligence on the part of the defendants in permitting the cattle to enter the premises in question, or to eat or injure the seed.

Because plaintiff did not own the land, and as is urged, had no interest in it, except a mere license to enter and remove the seed, it is contended that he could not maintain an action of trespass to realty; that he could not maintain an action of trespass to personal property, that being, as is asserted, all in which he had any interest, without alleging and proving negligence; and as there are neither allegations nor proof of negligence the nonsuit, as is asserted by respondents, was properly granted. As already observed, there is sufficient evidence to show that defendants' cattle entered the field, and ate and injured the seed. It seems that the court granted the nonsuit on the theory of a want of allegations and proof of negligence. We think the law was misapplied. We have a statute (Comp. Laws 1907, section 20) which provides that if any cattle, etc., shall trespass or do damage upon the premises of another person, except in cases where such premises are not inclosed by a lawful fence, in counties where a fence is required by law, the aggrieved party, whether he be the owner or an occupant of such premises, may recover damages for the injury sustained by him by an action at law against the owner of the trespassing animals. Under this statute, we think the plaintiff was such an "occupant" of the premises as to entitle him to recover damages for the injury done to the seed by trespassing animals, without alleging and proving negligence.

Personal property, as well as real estate, may be the subject of trespass. (28 Am. & Eng. Ency. L. (2d Ed.), 589.) The statute seems to contemplate that an owner or occupant,

2

of premises may recover whatever damages may have been sustained by him by trespassing animals, whether the injury be to realty or personal property, upon land owned or occupied by him. None of the cases cited by respondent (Klenberg v. Russell, 125 Ind. 531, 25 N. E. 596; Annapolis R. Co. v. Baldwin, 60 Md. 88, 45 Am. Rep. 711; Cool v. Crommet, 13 Me. 250; Fallon v. O'Brien, 12 R. I. 518, 34 Am. Rep. 713; Scott v. Lingren, 21 Kan. 184) are in point, except the last case, and that does not support respondents' contention.

The judgment of the court below is reversed, with directions to grant a new trial. Costs to appellant.

FRICK, C. J., and MCCARTY, J., concur.

HEWLETT BROTHERS v. MALLETT et al.

No. 2212. Decided July 12, 1911 (117 Pac. 68).

1. COURTS--JURISDICTION-SALT LAKE CITY COURT. The city court of Salt Lake City had jurisdiction to entertain a motion to set aside a garnishment judgment and release the garnishee, having the same power in that respect as a district court. (Page 362.)

An

2. APPEAL AND ERROR-ORDERS APPEALABLE "FINAL ORDER." order of the City Court of Salt Lake City, after final judgment in the original action, setting aside and releasing a garnishment, was "final" and appealable within the statute providing for an appeal in garnishment proceedings. (Page 363.)

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by Hewlett Brothers against F. J. Mallett and another.

Judgment setting aside a judgment against a garnishee and releasing the garnishment. Plaintiff appeals.

AFFIRMED.

E. A. Walton for appellant.

F. B. Scott for respondent.

APPELLANT'S POINTS.

The motion of the garnishee to set aside the judgment was neither a motion for a new trial nor a motion to set aside the default, but was nothing more or less than a collateral attack upon the original judgment, and the order of the court was to all intents and purposes a setting aside and ignoring of the original judgment of the justice.

The garnishee cannot dispute the record in the main action. To do so is a collateral attack upon the judgment therein. (Castner v. Styer, 23 New Jersey Law, 236.) "On principle a judicial proceeding is never void because proof of service is false in fact." (Van Fleet Collateral Attack, 468.) This principle is applicable to inferior courts. (Van Fleet Collateral Attack, 468; Lighsey v. Harris, 20 Ala. 409; Jeffries v. Wright, 5 Mo. 215; Putnam v. Man, 3 Wendell 202; Allen v. Martin, 10 Wendell 300; Jones v. Judkins [N. C.], 34 Am. Dec. 392; Kendrick v. Whitmore, 105 Mass. 23; Fitch v. Byall, 149 Ind. 554, 49 N. E. 455; Watkins v. Davis, 61 Tex. 414.)

"A collateral attack on a judicial proceeding is an attempt to avoid, defeat, or evade it, or to deny its force and effect in some manner not provided by law." (Van Fleet Collateral Attack, 3.)

A justice cannot set aside his own judgment though it is in fact valid if it is on its face. (Brown v. Goble, 97 Ind. 86.)

A justice of the peace cannot set aside an execution for the want of jurisdiction of the person. (Carr v. Penn, Ry. Co., 83 S. W. 981 [Mo. App.]; Brownfield v. Thompson, 70 S. W. 378 [Mo. App.].)

It is true that if a judgment is void upon its face it may be set aside, or an execution issued thereon may be set aside at any time and by any court. (Martin v. Atkinson, 108 Ala. 314; Gates v. Lane, 49 Cal. 266; Murdock v. Vries, 37 Cal.

527; Sanches v. Carriga, 31 Cal. 170; People v. Green, 74 Cal. 400.)

But where the record shows that there was jurisdiction an entirely different case was presented, and a motion does not lie to set it aside. (People v. Harrison [Cal.], 24 Pac. 311.)

An inferior court cannot set aside or vacate a judgment entered by it except in some mode specially authorized by statute. The city court has no terms, and in this respect is just like a justice of the peace. A justice of the peace cannot alter or set aside his own judgment after its rendition. (Foster v. Alder, 21 Mich. 507; State v. Case, 14 Mont. 520; Rich v. Martain, 92 Hun, 78; Winter v. Fitzpatrick, 35 Cal. 269; Weimer v. Sutherland, 72 Cal. 341.)

The judgment against Mallett in this case became a judgment of the city court under the laws of 1901, page 114. (Compiled Laws, 686x24.)

The city court was simply empowered to issue final process in such cases. It was not given any jurisdiction to set aside judgments directly, or to reach the same end by trying out the question of their validity otherwise than by inspection. The judgment was in the city court for the purpose of enforcement and not for the purpose of being collaterally assailed. The case is very analogous to one where an abstract of a justice's judgment is filed and docketed in the district court. The district in such a case cannot go behind the record and permit a collateral assault thereon, and any such order would be annulled on certiorari. (Lund v. Booth, 33 Utah, 341.)

A motion to quash an execution cannot be made to perform the office of a writ of error and cannot be used as a means of going behind the judgment. (17 Cyc. 1152.) Such motion would not reach any defect in the judgment not shown upon the face of the record." (Lund v. Booth, supra.)

STRAUP, J.

In December, 1902, a judgment was obtained in the justice court in favor of Hewlett Bros. against F. J. Mallett. Thereafter the office of the city court was created. The incumbent

of that office succeeded the justice, and took over his records. A garnishment was issued on the judgment by the city court and was served on the Utah Copper Company July 11, 1908. Upon its answer that it was indebted "to the defendant F. J. Mallett," a judgment was entered against it, on the 15th day of July, 1908. On July 22d of that year the copper company served, and on the 25th day of that month filed, a motion "to vacate and set aside the judgment against" it. The motion was "made upon the papers on file" in the cause "and upon the affidavit of F. J. Mallet." In that affidavit Mallet deposed that his name is F. J. "Mallet," not "Mallett;" that he at no time was indebted to Hewlett Bros., and at no time had any dealings with them; that he was not served with summons or other process in the action brought by them against F. J. Mallett; "that at the time certified to by the constable that service of the summons herein was made upon him," at Salt Lake City, "your affiant was in the Hawaiian Islands;" and that he had no knowledge that Hewlett Bros. had brought any action against him until in July, 1908, when the garnishment was served on the Utah Copper Company. Counter affidavits were filed on behalf of Hewlett Bros. that the deponent Mallet and the person served with summons and against whom judgment was had in the case was the same person, and that he, at the time of the purported service and return of the constable, was in Salt Lake City. Upon a hearing of the motion the city court made and entered the following order or judgment: "Garnishee's motion to set aside the garnishee judgment herein and to release the garnishment came on regularly, Attorney H. S. Harper appearing in behalf of the plaintiff and Attorney F. B. Scott appearing in behalf of the garnishee, Utah Copper Company. F. J. Mallet was sworn and testified, and plaintiff introduced as evidence the affidavit of F. G. Luke and E. G. Hines. The motion was now argued to the court by the attorneys for the respective parties, and the court, having considered the same and being now fully advised in the premises, ordered that the said motion be granted, and that the garnishee judgment herein be set aside, and that the garnishment levied by virtue of the